Wirtshafter v. Secretary of Health and Human Services
18-1562
| Fed. Cl. | Oct 18, 2021Background:
- Petitioner Linda Wirtshafter alleged that an influenza vaccine received on October 15, 2015 caused small fiber neuropathy; Special Master initially found no reasonable basis for the claim and denied attorneys’ fees and costs (Apr. 16, 2021).
- The Court of Federal Claims reversed that finding, holding Wirtshafter possessed a reasonable factual and legal basis, and remanded for further consideration (Aug. 26, 2021).
- On remand, the Special Master concluded petitioner met both elements for fee eligibility (good faith and reasonable basis) and determined an award was appropriate.
- Counsel’s proposed forum hourly rates ($400 for 2018–19, $425 for 2020, $450 for 2021) and a paralegal rate of $125 were accepted as reasonable; the Secretary did not contest those rates.
- The Special Master found the originally requested hours reasonable ($15,130), reduced supplemental fees by $4,250 for billing of clerical tasks, and awarded attorneys’ fees of $27,580 plus reimbursement of costs of $849.46.
- Final award: $28,429.46 payable to petitioner and her attorney; Clerk instructed to enter judgment unless a review motion is filed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eligibility for fees under Vaccine Act (good faith & reasonable basis) | Wirtshafter argued petition was filed in good faith and had a reasonable factual and legal basis. | Secretary did not dispute good faith or reasonable basis after remand. | Petitioner satisfied both elements; eligible for fees. |
| Whether reasonable to award fees despite Saxton discretion | Wirtshafter urged that an award was appropriate on remand. | Implicit: Secretary offered no objection; Saxton permits but does not require denial even if reasonable basis found. | Special Master exercised discretion to award fees. |
| Appropriate hourly rates | Proposed forum rates for Mishkind and paralegal were reasonable and customary. | Secretary did not contest the proposed rates. | Forum rates accepted as reasonable. |
| Reasonable hours and costs (including clerical billing) | Most billed hours were reasonable; supplemental entries justified except clerical tasks. | Secretary did not challenge hours overall. | Reduced fees by $4,250 for clerical billing; awarded attorneys’ fees $27,580 and costs $849.46. |
Key Cases Cited
- Simmons v. Secretary of Health & Human Services, 875 F.3d 632 (Fed. Cir. 2017) (good faith and reasonable basis are distinct eligibility elements)
- Saxton v. Secretary of Health & Human Services, 3 F.3d 1517 (Fed. Cir. 1993) (special master may deny fees despite reasonable basis)
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir. 2008) (forum-rate rule and Davis County exception for local rates)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (lodestar methodology for reasonable attorney fees)
- Davis County Solid Waste Mgmt. v. United States Environmental Protection Agency, 169 F.3d 755 (D.C. Cir. 1999) (basis for Davis County exception to forum rates)
- McIntosh v. Secretary of Health & Human Services, 139 Fed. Cl. 238 (Ct. Fed. Cl. 2018) (standard for reviewing reasonableness of fee applications)
- Perreira v. Secretary of Health & Human Services, 27 Fed. Cl. 29 (Ct. Cl. 1992) (attorney costs must be reasonable), aff'd, 33 F.3d 1375 (Fed. Cir. 1994)